Pregnant woman sacked via WhatsApp message

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Pregnant woman sacked via WhatsApp message

A tribunal has awarded a pregnant woman compensation after finding she was unfairly dismissed and had been treated harshly.

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A physiotherapist who was unfairly dismissed has been awarded compensation of five weeks’ pay.

The employer claimed to have had concerns about the employee’s job performance, but did not communicate them before dismissing her. There was also evidence the employee was treated more harshly after telling the employer she was pregnant.

Facts of case


Anju Das was employed part-time for about 18 months by Complete Care Physio Health Group. She was dismissed via a WhatsApp message. 

Because she was newly qualified, she was supervised by a more senior employee, Yasmine Arslan, who provided her with four “structured feedback” reports during her employment, using a standard “supervision report” form issued by the Physiotherapy Board. 

Ms Das’ termination letter referred to: failure to meet Ms Arslan’s expectations, customer complaints resulting in loss of business, suboptimal treatment of clients, a nearby medical centre allegedly requesting that she not treat people there, and failure to take on board feedback given by Arslan.  The supervision reports had not mentioned these concerns.

Ms Arslan said that, as the board would see the reports, she did not want to harm Ms Das’ reputation and employment prospects by including negative comments. Although Ms Arslan said she had mentioned the concerns in face-to-face conversations, Ms Das disputed that claim, saying they were only mentioned in a final conversation shortly before her dismissal. 

Two months before her dismissal, Ms Das told Ms Arslan she was pregnant. She claimed that complaints about her work performance only surfaced after that. Ms Arslan claimed that she had been contemplating dismissing Ms Das for job performance reasons for about six months before then. 

Eventually, Ms Arslan arranged a meeting with Ms Das and gave her the letter terminating her employment via text message. The letter claimed problems with Ms Das had been discussed many times, but she had failed to take the feedback on board and not improved. 

Ms Das claimed that Ms Arslan had not discussed adverse feedback from clients with her, and that Ms Arslan, not the clients, had cancelled bookings with her, often transferring them to other employees. The FWC commented that there was very little evidence of dissatisfied clients, nor that Ms Das’ work was incompetent.

One of the supervision reports was completed only a week after Ms Das was stopped from working at the medical centre, but it made no reference to the alleged complaints about her work there, nor to any other significant problems. Nor was there evidence that Ms Arslan communicated the alleged issues verbally to Ms Das at around the same time. 

The FWC commented that Ms Das’ employment would have ended soon after her dismissal anyway, partly because of the deteriorating relationship between the parties and partly because the decision to take work off her would have become self-fulfilling. 

In issue


The issues in this case were: whether the employer had complied with the Small Business Fair Dismissal Code and, if not, whether the dismissal was unfair, and if so whether reinstatement or compensation should be awarded. 

Decision


The employer had not complied with the dode. There was no evidence of serious misconduct, Ms Das was not told that she was at risk of dismissal (or why) and the reasons for dismissal were not valid ones. Therefore, she was also not warned, nor given an opportunity to rectify the reasons. Reasons were only revealed when she received her dismissal letter, and she had no opportunity to respond to them. 

Because Ms Arslan had made the decision herself and may have ignored advice she allegedly requested from the Fair Work Ombudsman, it was unlikely that the size of the business or its absence of dedicated HR staff/expertise would have influenced her actions. 

It appeared that becoming aware of Ms Das’ pregnancy influenced Ms Arslan to increase her unwillingness to “put up” with Ms Das.

However, the commission found that dismissal was harsh and disproportionate to whatever the problems were.

Reinstatement was impracticable, and the FWC estimated that given the frosty relationship that had developed, Ms Das’ employment would have lasted about five more weeks. It awarded compensation of $2892 for five weeks’ pay.

The bottom line: If the employer had legitimate evidence and concerns about the employee’s performance, it failed to communicate them to her despite the opportunities provided by supervision reports. Therefore, the FWC found that it had insufficient evidence to justify dismissal.

Performance-related problems need to be notified in a timely fashion, with the employee given opportunities both to respond to the concerns and to rectify legitimate shortcomings.

Read the judgment


Das v Complete Care Physio Health Group t/a Complete Care [2018] FWC 5883, 24 September 2018 
 
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